Bangalore District Court
Sri. Mohan Raj vs Sri. K.S. Gnanasekar on 16 April, 2018
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SMT. C.G. VISHALAKSHI, B.A.L., L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO.25777/2016
Dated: This the 16th day of APRIL-2018
COMPLAINANT/S: Sri. Mohan Raj,
S/o. Vellingiri,
Aged about 34 years,
R/at. C/o. Kemparaju, No.23,
Vijayraghava Reddy Building,
Srinivasa Reddy Layout,
Bannerghatta Road,
Deverachikkanahalli,
Bengaluru-560076.
ACCUSED: Sri. K.S. Gnanasekar,
R/at. No.4, Nobonagar,
Kammanahalli Road,
Coconut Garden,
Opposite to Shravanthi Woods
Apartment, Hulimavu,
Bannerghatta Road,
Bengaluru-560076.
OFFENCE Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Acquitted
**
JUDGEMENT 2 C.C.25777/2016
JUDGEMENT
This complaint is filed against the accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The accused and his son are well known to the complainant from the past several years and the accused was his neighbor. It is further case of the complainant that the accused and his family members all together doing the business of dealership of 'Mcdowell's Mear No.1 packaged drinking water in the name and style M/s. Ohm Sri. Sai Marketers operating at Bilekahalli and Arakere Area, Bangalore. The entire business is under the name of son of the accused namely M.J. Arun Karthik and who is taking care of the said business. It is further case of the complainant that the accused and his son gave offer to the complainant to invest amount in the said business Ohm Sai Marketers agreeing to pay 0.5% profit of the investment. Thus, the complainant had entered in to an JUDGEMENT 3 C.C.25777/2016 investment agreement on 30-01-2013 agreeing to the offer of the accused and his son and invested a sum of Rs.1,00,000/- by way of cheque bearing No.390078, dated:
31-01-2013 drawn on ICICI Bank, Bangalore Branch infavour of the son of the accused namely G. Arun Karthik.
The accused and his son had agreed to pay profit of 0.5% between 15th to 25th of every calendar month to the complainant. After laps of one month, the accused and his son again offered the complainant to invest additional amount of Rs.1,00,000/-. Hence, the complainant had entered into another investment agreement dated: 21-02- 2013 agreeing to the offer of the accused and his son and paid a sum of Rs.1,00,000/- by way of cheque bearing No.390081, drawn on ICICI Bank, Bangalore Branch infavour of the son of the accused namely G. Arun Karthik.
The accused and his son had agreed to pay profit of 0.5% between 15th to 25th of every calendar month to the complainant.
3. As per the terms and conditions, the accused and his son were paying a sum of Rs.10,000/- by cash to the JUDGEMENT 4 C.C.25777/2016 complainant every month till May-2014, but from June- 2014 they have stopped paying the agreed monthly profit. Hence, he had approached the accused in the month of June-2014 for payment of monthly profit, but the accused and his son were postponing the payment one pretext or the other. Thereafter, on mutual discussion and the continuous request, the accused and his son have paid a sum of Rs.50,000/- to the complainant on 06-12-2015 towards part settlement of pending monthly profit. After payment of Rs.50,000/- the accused and his son have failed to pay the remaining balance of profit to the complainant. Hence, there was mutual discussion in between accused, his son and the complainant in the month March-2016. Thereafter it was mutually resolved/agreed to settle the entire transaction for a sum of Rs.1,80,000/-. Towards discharge of the said liability the accused issued cheque bearing No.721954, dated: 30-06- 2016 for Rs.1,80,000/-, drawn on Indian Bank, BTM Layout Branch, Bangalore-76 infavour of the complainant and assured that the said cheque would be honoured on the date of presentation. On 29-06-2016 the accused JUDGEMENT 5 C.C.25777/2016 approached the complainant informed that there is problem in arranging the fund and requested the complainant to present the said cheque on 06-07-2016. As per the assurance and instruction, the complainant has presented the said cheque for encashment through his banker i.e., State Bank of India, BTM Layout, 4th Stage Branch, Bangalore, the said cheque was returned unpaid for the reason 'Funds Insufficient' vide memo dated: 11-07- 2016. Hence, the complainant caused legal notice against the accused on 27-07-2016 through RPAD calling upon the accused to pay the amount covered under the cheque by appraising the fact of dishonour of the cheque within 15 days from the date of receipt of the legal notice. The notice was duly served on the accused on 28-07-2016. But despite of the same, the accused failed and neglected to pay the amount as claimed by the complainant nor gave any reply to the said notice. Hence, having no other go, the complainant maintained this complaint against the accused, alleging that the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and prays to deal the accused as per law. JUDGEMENT 6 C.C.25777/2016
4. On presentation of the complaint, this court has taken cognizance of the offence; sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to him. Substance of the accusation was read over and explained to the accused. The accused did not plead guilty and claims to be tried. Hence, the matter was posted for the evidence of the complainant.
5. In order to prove the case of the complainant, he got examined himself as PW.1 and got marked documents as Ex.P1 to P9 and closed his side evidence. After completion of the complainant's evidence, the accused was examined under Section.313 of Cr.P.C. and his statement was recorded. To substantiate his defence the accused examined himself as DW.1, and examined two witnesses as DW.2 and DW.3 and got marked document at Ex.D1 on his side.
JUDGEMENT 7 C.C.25777/2016
6. Heard arguments. Both complainant and the accused counsels have submitted their written arguments.
To strengthen the case of the complainant, the counsel for the complainant has relied upon the following citations:
The Hon'ble High Court of Karnataka Crl. Revision Petition No.68/2015 Ramappa Gowda V/s. H. Bhadrappa Gowda ** The Hon'ble High Court of Karnataka Crl. Appeal No.901/2004 Smt. Umadevi Kumar V/s. Sri. Goverdhan Dass ** The Hon'ble Supreme Court of India Appeal (Crl) No.1015/1999 K. Bhaskaran V/s. Sankaran Vaidhyan Balan & Anr.
** The Hon'ble Supreme Court of India Appeal (Crl) No.1066/2001 K.N. Beena V/s. Muniyappan & Anr.
** The Hon'ble Supreme Court of India Criminal Appeal No.728/2015 T. Vasanthakumar V/s. Vijayakumari ** The Hon'ble Supreme Court of India Criminal Appeal No.2045/2008 M/s. Kumar Exports V/s. M/s. Sharma Carpets.
** The Hon'ble Supreme Court of India Criminal Appeal No.1020/2010 Rangappa V/s. Sri. Mohan ** The Hon'ble High Court of Kerala III (2007) BC 729 JUDGEMENT 8 C.C.25777/2016 R. Sivaraman V/s. State of Kerala & Anr ** To strengthen the case of the accused, the counsel for the accused has relied upon the following citations:
2015(3) KCCR 2578 M/s. Shriram Transport Finance Co. Ltd., V/s. Smt. Akhilabanu ** 2016(4) KCCR 2891 Prabhakar Murthy V/s. S.G. Shankaraiah ** 2016(1) KCCR 196 M/s. Shriram Transport Finance Company Limited, Bangalore V/s. Mahadevaiah ** ILR 2009 KAR 172 Sri. A. Viswanatha Pai V/s. Sri. Vivekananda S. Bhat ** (2015) 1 Supreme Court Cases 99 K. Subramani V/s. K. Damodara Naidu ** AIR 2008 Supreme Court 1325 Krishna Janardhan Bhat V/s. Dattatraya G. Hegde **
7. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
POINTS
1. Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence JUDGEMENT 9 C.C.25777/2016 punishable under Section.138 Negotiable Instruments Act?
2. What order?
8. My answers to the above points are as follows:
Point No.1: In the Negative
Point No.2: As per the final order,
for the following.
:: REASONS ::
9. POINT NO.1: As the accused did not plead guilty,
the complainant has chosen to examine himself as PW.1 and got marked documents as Ex.P1 to P9.
As per the decision reported in ILR 2008 KAR PAGE- 4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex court in AIR-2008 SC-1325 between Krishna Janardhan Bhat V/s Dattatreya G. Hegde, in order to attract Sec.138 of Negotiable Instruments Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable JUDGEMENT 10 C.C.25777/2016 debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
10. Keeping in view the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P1 is the Investment Agreement executed on 30th day of January-2013 and Ex.P2 is the Investment Agreement executed on 21st day of February-2013.
(b) Ex.P3 is the cheque bearing No.721954, dated: 30-
06-2016 for Rs.1,80,000/-, drawn on Indian Bank, BTM Layout Branch, Bangalore-560076. As per the say of the complainant, Ex.P3(a) is the signature of the accused.
(c) Ex.P4 is the Bank Challan. Ex.P5 is the Bank endorsement issued by the Bank authorities, dated: 11-07- 2016 for having dishonour of the cheque for the reason 'Funds Insufficient'.
JUDGEMENT 11 C.C.25777/2016
(d) It must be noted as per Clause (b) proviso to Section.138 of Negotiable Instruments Act, the complainant was required to make a demand for payment of the said amount within 30 days from the date of receipt of cheque as un-paid.
(f) Ex.P6 is copy of the legal notice dated: 27-07-2016 which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheque amount by issuing notice against him which is within 30 days.
(g) Ex.P7 is the postal receipt and Ex.P8 is the postal acknowledgement card, it shows that notice was sent against the accused under RPAD was duly served on the accused.
As per Clause (C) proviso to Section.138 of Negotiable Instruments Act, the accused is entitled 15 days time to make payment of money covered under cheque. Further, as per Section.142(b) of Negotiable Instruments Act, complaint has to be filed within 30 days from the date of JUDGEMENT 12 C.C.25777/2016 which the cause of action arose. Therefore, the complainant has filed this complaint well within time.
11. Thus, the complainant has fulfilled all the ingredients, which were required for the completion of the offence punishable under Section.138 of Negotiable Instruments Act.
12. On perusal of the entire materials on record, it shows that the complaint maintained this complaint against the accused alleging that accused and his son are well known to him. The accused and his family members all together doing the business of dealership of 'Mcdowell's Mera No.1 packaged drinking water in the name and style M/s. Ohm Sri. Sai Marketers operating at Bilekahalli and Arakere Area, Bangalore. The entire business is under the name of son of the accused namely M.J. Arun Karthik and who is taking care of the said business. The accused and his son had offered him to invest amount in the said business assuring that they would pay 0.5% profit of the investment and thus he by agreeing to the said offer, had entered into JUDGEMENT 13 C.C.25777/2016 investment agreement on 30-01-2013 and invested a sum of Rs.1,00,000/- by way of cheque infavour of the son of the accused. It was agreed by the accused and his son to pay profit of 0.5% between 15th to 25th of every calendar month to the complainant. After laps of one month, again on the offer of the accused and his son, he had invested additional amount of Rs.1,00,000/- with the business of the accused and his son. They have entered into another investment agreement dated: 21-02-2013 and paid a sum of Rs.1,00,000/- by way of cheque infavour of the son of the accused namely G. Arun Karthik. The accused and his son had agreed to pay profit of 0.5% between 15th to 25th of every calendar month to the complainant. As per the terms and conditions, though accused and his son were paying a sum of Rs.10,000/- by cash to him every month till May- 2014, but from June-2014 they have stopped paying the agreed monthly profits.
13. Hence, he had approached the accused in the month of June-2014 for payment of monthly profit, then on persistent demands and on mutual discussion, the JUDGEMENT 14 C.C.25777/2016 accused and his son have paid a sum of Rs.50,000/- to the complainant towards part settlement of pending monthly profit and failed to pay the outstanding profits to the complainant. Hence, there was mutual discussion in between accused the his son and the complainant in the month March-2016 and had resolved/agreed to settle the entire transaction for a sum of Rs.1,80,000/- and towards discharge of the said liability the accused issued the disputed cheque infavour of the complainant assuring about its honour. But the said cheque on its presentation was returned unpaid for the reason 'Funds Insufficient' vide memo dated: 11-07-2016. Despite of issuance of legal notice against the accused and its due service on him, since he did not come forward to pay the amount covered under the cheque, he maintained this complaint in time.
14. Per-contra, on reading the line of cross-examination and the defence setup by the accused, it shows that he denies the claim and allegation of the complainant as false. According to the accused, business transaction whatsoever, it was existed in between his son and the JUDGEMENT 15 C.C.25777/2016 complainant and there is no any transaction in between himself and the complainant and he never involved in the alleged business and he never carried out any business as contended by the accused. Further contended that he never received any amount from the complainant and he never issued this disputed cheque infavour of the complainant towards discharge of any debt or liability. On the other hand, he has taken up the defence that one day when he was in the house and was in bed ridden due to his ill-health. His son and daughter-in-law were not in the house. Then the complainant and one Kempegowda and others wrongfully trespassed to their house and by making galata against him got obtained his signed blank cheque forcibly and also obtained his signature on blank stamp paper. Thereafter the complainant by misusing the same has filed this false complaint against him, though there is no any transaction in between himself and the complainant and he has not executed any document infavour of the complainant.
JUDGEMENT 16 C.C.25777/2016
15. Thus, there is no dispute so as to the fact that Ex.P3 cheque is belongs to the bank account of the accused and Ex.P3(a) is his signature.
16. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE- 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of Negotiable Instruments (cheque in question) is admitted as well as proved.
17. In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption under Section.139 of Negotiable Instruments Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for JUDGEMENT 17 C.C.25777/2016 valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration.
18. Having admitted the fact that Ex.P3 cheque is belongs to the bank account of the accused and Ex.P3(a) is his signature, presumption arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, the burden is on the accused to rebut the same with probable evidence.
19. To prove the case of the complainant, he examined himself as PW.1 and got marked document at Ex.P1 to P9.
20. To disprove the case of the complainant and to put forth his defence, the accused himself examined as DW.1 and examined witnesses as DW.2 and 3.
21. On careful scrutiny of the entire materials on record, both oral and documentary, it shows that the complainant maintained this complaint against the accused alleging that the accused and his son were doing the business of dealership of 'Mcdowell's Mear No.1 packaged drinking JUDGEMENT 18 C.C.25777/2016 water in the name and style M/s. Ohm Sri. Sai Marketers operating at Bilekahalli and Arakere Area, Bangalore. On their offer and assurance of payment of profit on investment, he had invested the amount totally to the tune of Rs.2,00,000/- in the said business of the accused and his son through cheque on two occasions under agreements dated: 30-01-2013 and 21-02-2013. Thereafter, though accused and his son were paying Rs.10,000/- every month towards profit on the investment, but thereafter they have stopped the payment of the same. On enquiry, the accused and his son, himself had mutual discussion and paid sum of Rs.50,000/- in his favour towards part settlement and thereafter again there was mutual discussion and wherein the complainant and his son agreeing to settle the amount of the complainant finally to the tune of Rs.1,80,000/-, have issued the disputed cheque in his favour and assured about its honour. But on presentation of the said cheque, it was bounced back unpaid for the reason 'Funds Insufficient'. Despite of issuance of demand notice and its due service on him, JUDGEMENT 19 C.C.25777/2016 since the accused not come forward to pay the amount covered under the cheque. He maintained this complaint.
22. But the accused has denied the claim and allegation of the complainant by taking the specific defence that he never involved in the business of his son and there was no any business transaction in between himself and the complainant and he never obtained any amount from the complainant towards any business and he never issued this disputed cheque infavour of the complainant towards discharge of any debt or liability and hence it is his contention that there is no any legally enforceable debt or liability. Thus, he denied the alleged claim of the complainant.
23. In view of this denial i.e., with regard to the involvement of the accused in the business of the son of the accused, burden is on the complainant to prove the fact that there was existence of legally enforceable debt or liability in between himself and the complainant by proving the fact that the disputed cheque allegedly issued by the JUDGEMENT 20 C.C.25777/2016 accused is towards discharge of legally enforceable debt or liability by placing any material evidence before this court.
24. No doubt, having admitted the fact that Ex.P3 cheque is drawn from the joint account of the accused and his son and Ex.P3(a) is the signature of the accused, presumption is available to the complainant under Section.139 of Negotiable Instruments Act. But the presumption which arose infavour of the complainant is rebuttable presumption and it shall be presumed unless contrary is proved, that the holder of the cheque i.e., complainant has received the cheque for discharge of any whole or any part of any debt or other liability. Further, presumption under Section.118(a) also rebuttable presumption. Hence, burden is on the complainant to prove the said presumption by raising the probable defence with necessary cogent and convincing evidence.
25. In the case on hand, the accused has challenged the very existence of debt or liability by denying his involvement in the alleged business of his son i.e., JUDGEMENT 21 C.C.25777/2016 'Mcdowell's Mear No.1 packaged drinking water in the name and style M/s. Ohm Sri. Sai Marketers operating at Bilekahalli and Arakere Area, Bangalore. No doubt, there is no any dispute so as to the fact that the son of the accused was doing business of dealer ship of 'Mcdowell's Mear No.1 packaged drinking water in the name and style M/s. Ohm Sri. Sai Marketers operating at Bilekahalli and Arakere Area, Bangalore and the accused had invested the amount in the said business to the tune of Rs.2,00,000/- through cheque under agreements.
26. But it is claim of the complainant that the said business was carried out by the accused and his son claiming that it is the accused and his son have offered him to invest the amount in their business assuring about giving profit on such investment at the rate of 0.5%, But it is denied by the accused with specific defence that the business was carried out by his son only and there is no any involvement of him in the said business and he never obtained any amount from the complainant by giving any assurance. When such being the case, it is for the JUDGEMENT 22 C.C.25777/2016 complainant to prove the fact that the alleged business was carrying by the accused also along with this son and on the assurance and offer of the accused and his son only, he had invested the amount in the said business to the tune of Rs.2,00,000/- by placing any material evidence.
27. To substantiate the same, though complainant adduced his oral evidence by way of an affidavit and reiterated the averment of the complaint and also produced documents like investment agreements as per Ex.P1 and P2 under which he allegedly invested the amount to the tune of Rs.2,00,000/- i.e., cheques of Rs.1,00,000/- each on two occasions under two agreements etc., but it is denied by the accused contending that the said agreement if any was in between the complainant and his son and there is no any involvement of him in the said business transaction.
28. To prove the said defence the accused relied on the cross-examination of PW.1. The accused has elicited some useful admissions from the mouth of PW.1 with regard to JUDGEMENT 23 C.C.25777/2016 the alleged Ex.P1 and P2 investment agreements. Wherein it is elicited that the son of the accused Arun Karthik is the owner of 'Mcdowell's Mear No.1 packaged drinking water and he is doing the business under the name and style M/s. Ohm Sri. Sai Marketers operating at Bilekahalli and Arakere Area, Bangalore. It is further elicited that Ex.P1 and P2 agreements were entered into between the complainant and the son of the accused namely Arun Karthik. It is also elicited that the accused is not party to the said Ex.P1 and P2 investment agreements. Further elicited that the complainant had invested the amount of Rs.2,00,000/- under Ex.P1 and P2 investment agreements by giving the cheques infavour of son of the accused namely Arun Karthik. This evidence of PW.1 went to the root of the case of the complainant. On the other hand, it clearly goes to show that the alleged business transaction existed in between the complainant and the son of the accused and the agreements i.e., investment agreements entered into between only between the complainant and son of the accused and not in between the complainant and the accused. That means to say that the alleged JUDGEMENT 24 C.C.25777/2016 agreement were entered into between the complainant and the son of the accused namely Arun Karthik and the accused was not party to the said agreement and whatever the amount invested by the complainant was in the business of the son of the accused and he has paid the amount of Rs.2,00,000/- by way of cheques not infavour of the accused, but infavour of the son of the accused. This clearly goes to show that there was no any privity of contract in between the complainant and the accused.
29. Though complainant at one stretch stated that it is the accused only had participated in all the talks pertaining to the business transaction etc., but to prove the same, the complainant did not produced any material evidence before this court except his oral assertion and denial.
30. Further, though complainant had deposed in his evidence that the accused only had responded in relation to the business transaction stating that he has e-main corresponds and sms messages in between himself and the JUDGEMENT 25 C.C.25777/2016 accused to show about the involvement of the accused in the said business transaction etc, but to substantiate the said fact, that means to say that to prove the said fact the complainant did not produced any such electronic evidence before the court i.e., the sms and e-mail corresponds in between himself and the accused to show about the involvement and participation of the accused in the alleged business along with his son namely Arun Karthik. Thus, absolutely there is no any evidence placed before this court by the complainant to prove about the fact that the accused was also doing the business of water along with his son and he had invested the amount in the business only on the assurance and offer given by the accused and his son. On the other hand as admitted by the complainant i.e., PW.1 himself it is the son of the accused namely Arun Karthik was the proprietor of the said business and he had invested the amount of Rs.2,00,000/- in the business of the son of the Arun Karthik by paying the cheques of Rs.1,00,000/- each infavour of the son of the accused on two occasions under two agreements. Further as admitted the Ex.P1 and P2 agreements also were entered into JUDGEMENT 26 C.C.25777/2016 between the complainant and son of the accused and not in between himself, accused and son of the accused. This testifies the fact that the business transaction existed was in between the complainant and the son of the accused and not in between the complainant and the accused as claimed by him.
31. No doubt, the complainant at one stretch made an attempt to say that he had invested the amount of Rs.2,00,000/- in the said water business on the offer and assurance of the accused and his son to give 0.5% profit towards investment and accordingly they were paying Rs.10,000/- p.m. till May-2014 and thereafter they have stopped payment of monthly profits from June-2016. But to substantiate the said fact also i.e., about payment of the profits of Rs.10,000/- every month till May-2014 by this accused, the complainant did not produced any material evidence before this court nor elicited any material admission from the mouth of the accused or his son who had been examined before this court as DW.2. JUDGEMENT 27 C.C.25777/2016
32. Further at one stretch the complainant stated that when the accused and his son have stopped payment of monthly profits as agreed, he had questioned them and hence there was mutual discussion held in between himself and the accused and his son and in pursuance of such discussion, the accused has paid a sum of Rs.50,000/- towards part settlement etc., but to prove the said fact also i.e., about payment of Rs.50,000/- by this accused in his favour, the accused did not produced any material evidence before this court nor elicited any material admission from the mouth of DW.1. As per the records i.e., Ex.P1 and P2 agreements, the profit amount to be credited directly to the bank account of the complainant. As per the claim of the complainant, a sum of Rs.10,000/- was paying by the accused every month till May-2014. If really was there any involvement of the accused in the alleged business of his son, in which the complainant had allegedly invested the amount and the accused only had given offer and assurance to the accused about the payment of the profit at the rate of 0.5% on investment every month and they were paying such payments etc., JUDGEMENT 28 C.C.25777/2016 then certainly the complainant would have proved the said fact of the payment of Rs.10,000/- by the accused by way of remitting the same to his bank account by producing any documents like pass book or account extracts and he would have proved the same by confronting the said documents to the accused during the course of cross- examination. But no such material evidence has been placed before this court.
33. If really the alleged profits were paid by the accused, then certainly there must be some documents to show about the remittance of such amount by this accused to the bank account of the complainant. If that was so, then the complainant would have proved the such payment by producing any material documents like challens for having deposited the amount of Rs.10,000/- every month to the bank account of the complainant by producing documents like passbook or any other documents. But no such documents have been produced before this court nor elicited any such material admission from the mouth of DW.1 and 2 during the course of their cross-examination. JUDGEMENT 29 C.C.25777/2016 On the other hand, the complainant only had suggested the PW.1 during the course of cross-examination about the fact of remittance of such amount of Rs.10,000/- by the son of the accused Arun Kumar and not by this accused. This creates doubt with respect to the allegation of the complainant about the involvement of the accused in the alleged business transaction of the son of the accused namely Arun Kumar in which the complainant had allegedly invested the amount of Rs.2,00,000/-.
34. Further though complainant has elicited some evidence with regard to the signature which is marked at Ex.P10 and with this he made an attempt to say that the accused only had affixed the said signature as per Ex.P10 for the settlement of payment of amount by way of cheque as per Ex.C1 recitals etc. But nowhere the accused had admitted the fact that Ex.P10 signature has been affixed by him with regard to such recital found on Ex.C1. On the other hand he has stated that though signature as per Ex.P10 is his signature, but he denied the fact of writing of Ex.C1 recital by him as false. On the other hand, it is JUDGEMENT 30 C.C.25777/2016 elicited from the mouth of complainant that he only had written the said recital as per Ex.C1.
35. When such being the case, burden is on the complainant to prove the said fact on whose instruction, he had allegedly written the recitals as per Ex.C1 and who had instructed him to write such recitals by placing some material evidence before this court. Though PW.1 deposed in his evidence that he had written Ex.C1 recital at the instance of the accused etc., but to prove the said fact, he did not produced any material evidence before this court nor proved the same by examining the person who allegedly witnessed the said transaction i.e., about giving instruction by the accused to the complainant to write recital as per Ex.C1. Because, it is the case of the complainant that there was some talks in between the complainant and the accused and his son in the presence of one Kempegowda and Jayaram on 06-12-2015 at Udupi Garden Hotel situated at BTM Junction, where the accused and his son have agreed to pay the amount, towards part payment had paid Rs.50,000/-. It is further argued that, JUDGEMENT 31 C.C.25777/2016 the accused paid a sum of R.50,000/- to pay the balance amount through cheque and towards payment of the same, the accused had given the disputed cheque and in that connection the said Ex.C1 recitals have been written by him at the instance of the accused etc. But the accused has denied with regard to the alleged participation of him in the alleged discussion and also denied about giving such instruction to the complainant to write recitals as per Ex.C1. When such being the case, burden is on the complainant to prove the fact that said discussions were held in between himself and the accused along with the son of the accused by proving the fact of participation of the accused in such meeting and about the fact of giving instruction by the accused in his favour admitting his liability of payment of the amount of Rs.50,000/- and also about his agreement to pay the amount of Rs.1,80,000/- towards full and final settlement and about issuance of cheque. But the complainant has not produced any evidence before this court with regard to the fact of presence of the accused in such discussion and he has not proved the same by examining any material witnesses to JUDGEMENT 32 C.C.25777/2016 such Ex.C1 recital i.e., by examining the person in whose presence the alleged discussion have been taken place.
36. Because it is the defence of the accused at the time of discussion, one Kempegowda and Jayaram were present. Though Kempegowda was examined before this court by the accused as DW.3, but his evidence does not reflects the fact of presence of the accused in such discussion allegedly had on 12-06-2015 as claimed by the complainant. Further the complainant has not examined another person Kempegowda who allegedly present in such discussion. Hence, the evidence of PW.1 not supported by any cogent evidence in proving the fact that the acc had affixed his signature as per Ex.P10 by admitted the fact of issuance of cheque towards discharge of the liability of payment of Rs.1,80,000/- as per Ex.C1 recitals. Thus, absolutely, there is no any material evidence placed before this court to substantiate the fact that the accused also doing the business of the water with his son and he also had assured and offered the complainant along with his son to invest JUDGEMENT 33 C.C.25777/2016 the amount in their business and accordingly, the complainant had invested the amount in their business.
37. No doubt, the accused not proved his defence with respect to taking away his signed blank cheque from his possession by trespassing to his house along with other men forcibly by making galata. But mere that fact, it cannot be said that he had proved the fact of involvement of the accused in the business of his son Arun Karthik and the accused has admitted the fact of his involvement in the business and he had assured and offered the complainant for investment of the amount in their business assuring about giving profits and thereafter they by admitting their liability to pay the amount to the tune of Rs.1,80,000/- as full and final settlement, had issued this disputed cheque infavour of the complainant, unless he proves the same by producing some cogent and convincing evidence beyond shadow of doubt. But in this regard, the complainant not placed any iota of evidence before this court. This creates doubt.
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38. No doubt, at one stretch the complainant has made an attempt to say that the accused only had participated in all the transaction in respect to the said business i.e., water business along with this son etc., but as aforesaid, he did not proved the said fact by producing any cogent evidence and he also not proved the fact of issuance of this disputed cheque by the accused in his favour in the circumstance as stated by him. This creates doubt with regard to the very existence of legally enforceable debt or liability in between the complainant and the accused, since has not proved the fact that the accused was also involved in the business of his son and he was looking after the business along with his son and on his assurance and promise only, he had invested the amount in the business of the accused and his son and the accused by admitting his liability, has issued this disputed cheque in his favour towards settlement of his amount allegedly invested towards the said business by placing any material evidence.
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39. Because, admittedly, Ex.P1 and P2 investment agreements were entered into between the complainant and the son of the accused. The accused is not party to the said agreements. This clearly goes to show that there is no any privity of contract or privity of transaction in between the complainant and the accused.
40. Further as per the evidence of PW.1, the amount paid by the complainant in respect to the investment was infavour of the son of the accused and not infavour of the accused. Further as aforesaid discussion, the complainant has not proved the fact of issuance of this disputed cheque by the accused in his favour towards discharge of legally enforceable deft or liability by proving the fact of existence of legally enforceable debt, since he failed to prove the fact that the discussions were entered into between the complainant and the accused and his son and he also failed to prove the fact of issuance of disputed cheque by the accused in his favour in pursuance of such mutual discussion as stated by him under Ex.C1 document. Thus, the complainant utterly failed to prove the fact of existence JUDGEMENT 36 C.C.25777/2016 of legally enforceable debt or liability in between the complainant and the accused. When the complainant failed to prove the fact of existence of transaction in between himself and the accused and the fact of liability of payment of any amount by the accused in his favour. Further the complainant failed to prove the fact that there was existence of privity of contract in between the complainant and the accused. When such being the case, the say of the accused with regard to the issuance of disputed cheque by the accused in is favour towards discharge of debt or liability is not acceptable and convincing one. On the other hand it shows that there was no any existence of legally enforceable debt or liability. This shows that the complainant gained possession of the cheque in some other circumstances. When the cheque was obtained in different circumstances, then the accused cannot be held liable for the conviction for the offence punishable under Section.138 of Negotiable Instruments Act.
41. In the case on hand also, there is no evidence placed before this court by the complainant to show that the JUDGEMENT 37 C.C.25777/2016 Ex.P3 cheque was given by the accused towards discharge of the alleged debt of Rs.1,80,000/- only by proving the alleged transaction in between himself and the accused. Therefore, the accused is not liable for conviction.
42. No doubt at one stretch, PW.1 stated that the accused had affixed his signatures to the alleged Ex.P1 and P2 agreements and with this he made an attempt to say that the accused only had participated in the alleged transaction in between the complainant and the son of the accused etc. But mere the fact that the accused was one of the witness to the alleged agreement, no liability can be fastened on him unless the complainant proves the fact of his involvement in the business of his son and there was an agreement in between the complainant and the accused by placing any material evidence before this court. Assuming that the accused only had given this disputed cheque to the complainant etc., then also it cannot be said that it was towards discharge of the legally enforceable debt or liability. When the complainant failed to prove the fact of involvement of the accused in the business of his JUDGEMENT 38 C.C.25777/2016 son and about his participation in the alleged transaction in between the complainant and the son of the accused and thus the complaint of the complainant fails for want of existence of legally enforceable debt or liability. Hence, the arguments of the complainant that the accused only had participated in the alleged transaction in between the complainant and the son of the accused and he is also one of the witness to the alleged sale agreement and thus he is liable for prosecution under Section.138 of Negotiable Instruments Act etc., holds no water.
43. Hence, the presumption on the existence of above noted the fact that Ex.P3 cheque was issued to the complainant to discharge of existed liability has been rebutted through sufficient evidence. Hence, onus shifted on the shoulder of the complainant, to prove the fact that there is existence of debt or liability in between the complainant and the accused and to prove the fact of advancement of alleged transaction of Rs.1,80,000/- infavour of the accused by placing necessary evidence with regard to loan transaction beyond reasonable doubt. But JUDGEMENT 39 C.C.25777/2016 as aforesaid discussion, the complainant failed to prove the fact of lending loan of Rs.1,80,000/- infavour of the accused by placing any cogent and convincing evidence. Hence, with all these reasons, I am of the opinion that the complainant utterly failed to prove the guilt of the accused beyond reasonable doubt for the offence punishable under Section.138 of Negotiable Instruments Act. Hence, I answered Point No.1 in the Negative.
44. POINT NO.2: In view of my discussions on Point No.1 as above, I proceed to pass the following:
ORDER Acting under Section.255(1) Cr.P.C., the accused is acquitted for the offence punishable under Section.138 of Negotiable Instruments Act.
The accused is set at liberty and his bail bond stands cancelled.
(Dictated to the stenographer, transcribed by him and also dictated on online, corrected and then pronounced in open court by me on this the 16th day of April-2018.) (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.JUDGEMENT 40 C.C.25777/2016
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Mohan Raj Documents marked on behalf of the complainant:
Ex.P1&2 : Investment Agreements Ex.P3 : Cheque Ex.P4 : Challan Ex.P5 : Endorsement Ex.P6 : Legal Notice Ex.P7 : Postal receipt Ex.P8 : Postal acknowledgment card Ex.P9 : Complaint
Witnesses examined on behalf of the accused:
DW.1 : Gnanasekar DW.2 : Arun Karthika DW.3 : Jayaram
Documents marked on behalf of the accused:
Ex.D1 : C/c of agreement of sale/purchase of business (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru. * Accused copy furnished.